Author: John Ho

On May 10, the Department of Labor officially nullified a rule passed during the Obama administration that limited states’ ability to require mandatory drug testing for individuals applying for unemployment benefits.

As we covered in an earlier blog, OSHA’s new electronic recordkeeping rule (which is currently the subject of legal challenge) contains anti-retaliation language which OSHA has interpreted as preventing employers, except in limited situations, from implementing mandatory post-accident drug testing.

Although the nullified rule was issued by the Department of Labor Employment and Training Administration, one reading tea leaves might well predict that the principle at play may well extend to OSHA’s retaliation rule soon. (more…)

Most businesses, particularly outside of construction or manufacturing, have probably not been the subject of an OSHA audit or may not have had much involvement with OSHA issues. This is due in large part to the small size of the agency. According to OSHA, with its state partners, there are approximately 2,100 inspectors responsible for the health and safety of more than 130 million workers. Add to the fact that there is no private right of action under OSHA, like the FLSA, and it is understandable why this may be the case.

However, there are other ways OSHA may become an issue for businesses. For example, if your business provides services at another entities worksite, the service contracts often contain provisions that the service provider shall comply with any and all applicable laws and they often reference OSHA specifically. Thus, failing to comply with OSHA standards could provide a basis for a party to terminate a contract even if the “real” reason for terminating the contract may be driven by something entirely different. (more…)

In 2013, OSHA issued what is commonly referred to as the “Fairfax” memo, a standard interpretation letter that, among other things, permitted non-employee, union representatives to participate in the walk-through portion of an OSHA audit. Last year, the National Federation of Independent Business filed a suit challenging this interpretation. Upon OSHA’s notification that the Fairfax memo had been rescinded and that it had removed the guidance from the Field Operations Manual, the Federation withdrew its legal challenge.

It is welcome news for businesses and perhaps a sign of things to come for other outstanding legal challenges to new OSHA rules and past OSHA guidance including but not limited to electronic recordkeeping, anti-retaliation, higher penalties, silica, and OSHA’s Guide to Restroom Access for Transgender Workers, etc.

On April 6, OSHA announced it has delayed implementation of its new rule for 90 days which, among other things, cuts in half the maximum allowable level of silica dust exposure in the construction industry. The new compliance deadline is now September 23, 2017. OSHA stated that the delay will provide more time to train inspectors and educate contractors and others regarding compliance issues associated with the rule. According to OSHA, approximately 2.3 million workers are exposed to silica in workplaces.

Business, industry, and labor groups are challenging certain portions of the rule in the D.C. Circuit.

As with a number of other new rules, the ultimate fate of them is both a wait-and-see with the new administration as well as the judicial review process.

In the final days of the Obama Administration, OSHA finalized a rule that sought to restore what the agency called a “longstanding position” that employers must record and keep records of worker injuries or illness for a full five years or they could be cited.

The D.C. Circuit in a case involving Volks Constructors held that OSHA’s rule of citing employers for the full five year period for such violations exceeded its statutory authority and limited citations to the standard 6 month period.

Last week, the Senate passed a resolution to undo the “Volks” rule and now it will be sent to the President who has indicated that he will sign so it looks like just a matter of time before the “Volks” rule is finally gone.

The ABA – OSHA Committee held its 2017 Midwinter Meeting in Jupiter Florida from March 7 – 10. It was well attended by OSHA practitioners across the country including many prominent government attorneys including: Susan Harthill, Deputy Solicitor for National Operations; Thomas Galassi, Director, Directorate of Enforcement Programs, OSHA; the Honorable Covette Rooney, Chief Judge, U.S. Occupational Safety and Health Review Commission; and Heather MacDougall, Acting Chairperson, Occupational Safety and Health Review Commission.

Many in the audience wondered how the new Administration might affect OSHA in the next four years. As expected, the typical response from the government side was business as usual with one government attorney commenting, “smaller but mightier.”

The various panels throughout the conference discussed timely OSHA issues (many of which have been covered in prior blogs here) including the new electronic recordkeeping rules, annual indexing of penalties, developments in process safety management, criminal prosecutions following workplace fatalities, targeted enforcement initiatives and anti-retaliation issues.

During one panel which discussed legal issues arising from OSHA inspections, there was a particularly lively exchange between management attorneys and OSHA representatives on two specific issues: 1) the right of non-employee, union representatives in a non-union worksite to participate in a walk-around inspection and 2) the right of hourly employees to have a management representative participate in an OSHA interview. (more…)

The United States Department of Labor announced another proposed delay of the rule entitled, “Occupational Exposure to Beryllium” from March 21 to May 20. Beryllium is a material that can cause lung disease. The proposed delay is intended to give OSHA an opportunity to further review and consider the rule in conformance with a recent White House memorandum which directed the Department of Labor to undertake a review of any new pending regulations and temporarily postpone the date that they would take effect.

The proposed extension of the effective date will not affect the compliance dates of the beryllium rule. Comments regarding the additional proposed extension will be accepted through March 13, 2017. Comments can be submitted on this proposal at http://www.regulations.gov.

In a prior blog we discussed OSHA’s new electronic recordkeeping rule which requires, among other things, certain employers to submit injury and illness data.

As a reminder, employers are also affirmatively required to notify OSHA when an employee is killed on the job or suffers a work-related hospitalization, amputation, or loss of an eye. A fatality must be reported within 8 hours while an in-patient hospitalization, amputation, or eye loss must be reported within 24 hours. (more…)

Congress granted the Secretary of Labor the authority to enter places of employment to conduct safety and health inspections. The OSH Act provides that such inspections must take place at reasonable times, within reasonable limits and in a reasonable manner and that they may include inspection of relevant conditions, structures and other equipment. For a general description of the inspection process, OSHA has published a Fact Sheet which is available here.

As the Fact Sheet indicates, it is also well-established that an employer may generally request a search warrant before allowing an OSHA inspector into the worksite. There are limited exceptions to the warrant requirement which include 1) consent by the employer 2) authorized third party consent such as consent provided by a general contractor at the worksite 3) emergency situations if there is a compelling need for official action and no time to secure a warrant and 4) if the conditions are in plain view of the public or inspectors while they are lawfully on the employer’s premises. (more…)

In a prior blog, we discussed OSHA’s recently enacted anti-retaliation rule which says, among other things, that employers cannot deter injury and illness reporting or retaliate against employees for such reporting. The rule itself does not expressly address drug-testing but the preamble makes clear that OSHA believes mandatory post-accident drug testing would be retaliatory. However, OSHA further stated that mandatory post-accident drug testing to comply with the requirements of a state or federal law or regulation is permissible. Mandatory post-accident testing to receive workers’ compensation discounts is also lawful. In other words, such testing would not be retaliatory because there is a lawful and valid reason that permits or requires such testing.

In the absence of a permissible reason to perform a mandatory post-accident drug test the issue essentially becomes whether the employer had a reasonable basis for drug testing an employee who reported a work-related injury or illness after an accident. In guidance issued on October 19, 2016, OSHA opined the “central inquiry” will be whether the employer had a reasonable basis for believing that drug use by the reporting employee could have contributed to the injury or illness. If not, the employee should not be drug tested. (more…)

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The Editor

John S. Ho
John S. Ho exclusively represents employers in labor and employment matters including but not limited to safety and health matters under OSHA and similar state law plans. John also defends employers in the numerous retaliation statutes enforced by OSHA. Prior to joining Cozen O'Connor, John was a prosecutor for the United States Department of Labor, Office of the Solicitor where he enforced OSHA among other federal statutes. John serves as the chair of Cozen O’Connor’s OSHA practice area. His complete bio can be reviewed here.

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